Commonwealth v. Werner, 11–P–368.

• Decision Date: 02 May 2012
• Docket Number: No. 11–P–368.,11–P–368.
• Citation: 81 Mass.App.Ct. 689,967 N.E.2d 159
• Parties: COMMONWEALTH v. Clare WERNER.
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 689

967 N.E.2d 159

COMMONWEALTH

v.Clare WERNER.

No. 11–P–368.

Appeals Court of Massachusetts, Plymouth.

Argued Feb. 1, 2012.

Decided May 2, 2012.

Peter M. Onek, Boston, Committee for Public Counsel Services, for the defendant.

Jessica V. Barnett, Assistant Attorney General, for the Commonwealth.

Present: GRASSO, KAFKER, & MILKEY, JJ.

KAFKER, J.

After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G.L. c. 266, § 30(1), her defense counsel visited Facebook, a social networking Web site, and reviewed public postings by two jurors made during and after the trial concerning their jury service, as well as the responses to those postings. The primary argument in this consolidated appeal from the defendant's convictions and from the denial of her new trial motion is that the Facebook postings and responses raised the possibility that the jurors may have been exposed to extraneous influences. In particular, the defendant argues that the judge should have waited for Facebook to provide information pursuant to a subpoena before denying her motion for a new trial. We conclude that the judge did not abuse her discretion in denying the motion for a new trial after an evidentiary hearing. We also conclude that the other issue raised on appeal—whether a jury instruction explaining why Miranda warnings were not given intruded into the jury's voluntariness inquiry pursuant to the humane practice rule—is without merit. We therefore affirm.

Background. The jury were warranted in finding the following facts. During fiscal year 2005, the defendant was a bookkeeper in the student accounts office of Bridgewater State College (College),¹ which handled payments for students' tuition and fees. When tellers received payments in cash or by check, they logged them into a computerized accounting system and placed them in sealed bank deposit bags with deposit slips. The defendant was responsible for processing the deposit bags.

On numerous occasions between July, 2004, and June, 2005, the defendant opened deposit bags, took the cash that was to be deposited, and replaced it with an equivalent amount in checks from incoming student payments that she had previously held back. If the replacement checks did not exactly total the amount of cash she removed, the defendant would include a personal check from her own account in the amount of the difference, typically a relatively small sum. She would then alter or rewrite the deposit slips to match the changed contents of the bags. The total amount of the thefts was approximately $355,000. When questioned by investigators, the defendant admitted to stealing money from the accounts two or three times per week, in totals of between $600 and $700, and once taking $8,000.²

Posttrial proceedings. The evening after the guilty verdicts were returned, defense counsel, having previously read general media reports about improper use of social media by jurors, attempted to look up the jurors on Facebook. Two of them, Juror A and Juror B, had open profiles, meaning that their profiles were accessible to any Facebook member. Defense counsel discovered that on March 30, 2009, while jury selection was ongoing, Juror A had posted: “[I] had jury duty today and was selected for the jury.... Bleh! Stupid jury duty!” Juror A had received three responses, one of which stated: “Throw the book at 'em.” As the trial progressed, Juror A posted about sitting for long hours and her desire to complete the trial. At one point another juror in the trial, Juror C, who had been “friended” by Juror A during the trial, responded to her, saying, “[H]opefully it will end on [M]onday....” ³

Also during jury empanelment on March 30, Juror B posted at 8:05 a.m.: “Waiting to be selected for jury duty. I don't feel impartial.” A person responded, “Tell them 'BOY HOWDIE, I KNOW THEM GUILTY ONES!” Later that day at 4:54 p.m., Juror B posted again: “Superior Court in Brockton picks me ... for the trail [ sic ]. The[y] tell us the case could go at least 1 week. OUCH OUCH OUCH.” Juror B's wife replied to this at 9:37 p.m., “Nothing like sticking it to the jury confidentiality clause on Facebook.... Anyway, just send her to Framingham quickly so you can be home for dinner on time.” Later that evening, another of his friends responded: “I'm with [Juror B's wife] ... tell them that you asked all your F[ace] B[ook] friends and they think GUILTY.” ⁴

After finding these postings, defense counsel filed a motion for a new trial and sought to subpoena records from Facebook concerning postings and messages to and from these two jurors regarding their jury service. The trial judge, who also heard the motion for a new trial, decided to hold an evidentiary hearing at which Juror A and Juror B would testify. The judge also issued a subpoena to Facebook.⁵ Prior to the hearing, however, Facebook had not responded to the subpoena or telephone calls from the court. The evidentiary hearing was held on June 29, 2009.

At that hearing, Juror A was asked whether “during the very beginning of the case, that is impanelment, through the receiving of the jury verdict, you may have gone online and posted some information regarding this case.” She responded, “I don't believe I did.” She was then shown the posting that described her feelings about being selected and she recalled the posting and the responses. She explained that the postings were from people “sympathizing with ... having to spend time sitting on a jury.” She acknowledged “friending” Juror C and another juror but said she had not sent any electronic mail messages (e-mails) or instant messages to them during the trial.

Juror B testified that he was the author of the postings. He also testified that he did not recall seeing the “BOY HOWDIE” response to his 8:05 a.m. posting or any other responses to that posting. When asked about his wife's response to the 4:54 p.m. post, he denied that he had told his wife “the details of the case, the name of the defendant, anything that was presented as evidence.” He suggested that she may have learned about the case through “public records.” He also testified that he did not reply to any of the responses to his 4:54 p.m. posting, although he did see the first three responses. Nor could he specifically recollect going back to Facebook between the 4:54 p.m. posting and the end of the trial. He testified that “after the trial when I became aware of the controversy, I deleted my wall.” ⁶

The trial judge found that none of the responses to any of the postings contained extraneous matters. She further found that “no evidence adduced at the hearing supports the defendant's claim that either Juror A or Juror B was exposed via the Internet to any extraneous matter.” In denying the motion for a new trial, the judge rejected the request by the defendant to leave the hearing open until Facebook responded to the subpoena. The judge found: “The credible testimony given at the evidentiary hearing leads the Court to conclude that the records subpoenaed are unnecessary in these circumstances. Put differently, were the Court to have had the benefit of that testimony ex ante, the Court would not have ... exercised its discretion under Mass.R.Crim.P. 30(c)(4) to grant postconviction discovery.” ⁷

Discussion. 1. Exposure to extraneous influences. a. Motion for new trial. A trial judge “may grant a new trial at any time if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). A judge may also order appropriate discovery after the verdict if the defendant makes “a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.” Commonwealth v. Daniels, 445 Mass. 392, 407, 837 N.E.2d 683 (2005). See Mass.R.Crim.P. 30(c)(4).

More specifically, when a defendant claims she was prejudiced by a juror's communications with outside parties during trial, she “bears the burden of demonstrating that the jury were in fact exposed to ... extraneous matter.” Commonwealth v. Fidler, 377 Mass. 192, 201, 385 N.E.2d 513 (1979). See Mass. G. Evid. § 606(b) & note, at 162–164 (2011). She must satisfy this burden of proof by a preponderance of the evidence. Commonwealth v. Kincaid, 444 Mass. 381, 386–387, 828 N.E.2d 45 (2005). Defense counsel is also in a sensitive position in satisfying this requirement, as counsel is not permitted to independently contact jurors. Commonwealth v. Fidler, supra at 202, 385 N.E.2d 513. If the defendant does establish the existence of extraneous influences, the Commonwealth must demonstrate beyond a reasonable doubt that the extraneous matter did not cause her prejudice. Id. at 201, 385 N.E.2d 513.

In the instant matter, the defendant does not contend that, on the record before the judge when she decided the new trial motion, there was sufficient evidence to establish that the jury learned of relevant “information not part of the evidence at trial.” Commonwealth v. Guisti, 434 Mass. 245, 251, 747 N.E.2d 673 (2001)( Guisti I ). See Commonwealth v. Guisti, 449 Mass. 1018, 867 N.E.2d 740 (2007)( Guisti II ). The defendant acknowledges that the postings, responses, and testimony of the jurors reveal no extraneous information. The defendant instead argues that she was deprived of the opportunity to develop evidence of an extraneous influence when the judge ruled on the new trial motion prior to receiving the materials subpoenaed from Facebook.⁸ The defendant suggests that the case law compels the judge to undertake further investigation because the jurors' Facebook postings cast doubt on the truthfulness of their testimony at the evidentiary hearing.

The most instructive cases regarding the defendant's argument that the new trial motion could not be decided without further inquiry are Guisti I and Guisti II. There, defense counsel learned after the jury verdicts that one...